| People v Ruiz |
| 2014 NY Slip Op 00438 [113 AD3d 535] |
| January 28, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Appellant, v Frank Ruiz, Also Known as Hector Cortez, Respondent. |
—[*1]
Steven Banks, The Legal Aid Society, New York (Elon Harpaz of counsel), for
respondent.
Judgment of resentence, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered April 26, 2012, resentencing defendant to concurrent terms of 8½ years, and bringing up for review an order of the same court and Justice, entered on or about February 23, 2012, which granted defendant's CPL 440.20 motion to set aside his sentences as a second violent felony offender, and directed that he be resentenced as a first violent felony offender, unanimously reversed, on the law, the judgment of resentence vacated, and the matter remanded for resentencing consistent with People v Boyer (22 NY3d 15 [2013]).
In view of the Court of Appeals' recent decision in Boyer, defendant was not entitled to relief under CPL 440.20 from his original sentencing as a second violent felony offender. Accordingly, we vacate the judgment of resentence and remand for resentencing in accordance with the rule stated in Boyer. Concur—Gonzalez, P.J., Friedman, Moskowitz and Feinman, JJ.
[Recalled and vacated, see 116 AD3d 582.]